Posted by: Patrick Allen Foster | September 27, 2013

Capital Punishment in India and the Eighth Amendment of the US Constitution

With regards to the death penalty and the “evolving standards of decency” that factor so heavily in modern interpretation of the Eight Amendment, Eugene Kontorovich at the Volokh Conspiracy has a post about the recent evolution of the death penalty in India:

India has just sentenced four men to death in the infamous Delhi rape/murder case. India has apparently ended an eight-year moratorium on executions last year, greatly altering the global capital punishment map. At the same time, it also passed a new rape law, which would allow for execution in aggravated cases (not necessarily involving minors) even when no death results. Thus India’s new law goes even beyond what was recently forbidden by the U.S. Supreme Court in Kennedy v. Louisiana.

The problem with determining constitutional law in reference to a “international opinion” and practice is that it keeps changing, and not in a constant direction. In Roper v. Louisiana, the Court famously found the practices of other countries relevant to the constitutionality of the death penalty. A few years later, in Kennedy v. Louisiana, the Court held the death penalty could not be constitutionally applied to child rapists (having given up execution for adult rape a while back).

The more interesting point here is not about death penalty jurisprudence per se, but about the underlying assumptions about the reality and inevitability of human moral progress that underpins much of constitutional law’s “evolving consensus” discourse. Unlike in biology, norms and morales can evolve back.


  1. India is a v. important country for a number of reasons, but one country’s move to reinstate the death penalty after a moratorium is not enough, I wdn’t think, to “greatly alter the global capital punishment map” or to constitute evidence of ‘regression’ in the global norm vs capital punishment.

  2. Fair enough: one data point does not make a plot.

    Where does the “greatly alter the global capital punishment map” language (in quotes) come from? I didn’t see it in the linked post.

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